Board is allowed to sue developer

Q: Our condominium association was recently turned over from the developer. An engineer retained by the board has identified numerous construction defects that will be expensive to repair. Negotiations with the developer broke down, and it looks like the association is going to file suit against the developer. Our declaration, prepared by the developer, requires the board to obtain approval by two-thirds of the owners before filing a suit. Is that enforceable?

A: This is addressed in Section 18.9 of the Illinois Condominium Property Act. Any provision in a condominium instrument is void as against public policy and ineffective if it limits or restricts the rights of the board of managers by requiring the prior consent of the unit owners in order for the board of managers to take any action, including the institution of any action in court or a demand for a trial by jury. As a result, the board is not required to obtain the consent of unit owners to proceed with litigation against the developer.

Q: The declaration for our common interest community association is very old, and predates the Illinois Common Interest Community Association Act. Is the association required to amend the declaration to bring it into conformity with that Act?

A: Common interest community associations that are governed by the Act are not required to amend their declaration to conform to the Illinois Common Interest Community Association Act. However, per the Act, in general, the provisions of the Act are applicable to all common interest community associations in Illinois, and common interest community associations were required to be in full compliance with the provisions of the Act no later than Jan. 1, 2012.

One of the ways a common interest community association can reduce the likelihood that their actions, in reliance on the language of their declaration, do not conflict with the Act is to amend the declaration to conform to the Act. Such an amendment can be adopted by vote of two-thirds of the board of directors, without an upfront vote of the members of the association. Note that the same process is available to a condominium association to bring its declaration into conformity with the Illinois Condominium Property Act.

Q: This year's election for members of our condominium was very contentious. An owner has asked to examine copies of the ballots and proxies used in the election. Is the association required to provide these?

A: Per Section 19 of the Illinois Condominium Property Act, ballots and proxies related to ballots for all matters voted on by the members of the association during the immediately preceding 12 months, including but not limited to the election of members of the board of managers, are among the books and records required to be maintained for examination and copying by an owner. Any member of an association shall have the right to inspect, examine and make copies of the ballots and proxies, but only for a purpose that relates to the association.

As a condition for exercising this right to examine and copy ballots and proxies, the board of managers or authorized agent of the association may require the owner to certify in writing that the information contained in the records obtained by the member will not be used by the member for any commercial purpose or for any purpose that does not relate to the association.

Q: Our condominium association adopted "secret ballot" rules. If an owner wants to examine ballots, what can we omit from those documents to ensure the ballots remain "secret?"

A: The board of managers of an association that has adopted a secret ballot election process as provided in the Condominium Property Act may provide voting ballots, without identifying unit numbers associated with each vote.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.